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O'SULLIVAN v. NEW YORK TIMES

March 16, 1999

JAMES J. O'SULLIVAN, ENRIQUE EDWARDS, LAWRENCE HELFAND, THOMAS P. MATHEWS, MAUREEN A. MOCCIA, KENNETH J. MOONEY, HOWARD SEITER, BENJAMIN REDMOND, SHEILA MCCUE, PLAINTIFFS,
v.
THE NEW YORK TIMES, DEFENDANT.



The opinion of the court was delivered by: Preska, District Judge.

MEMORANDUM and ORDER

Plaintiffs James J. O'Sullivan, Enrique Edwards, Lawrence Helfand, Thomas P. Mathews, Maureen A. Moccia, Kenneth J. Mooney, Howard Seiter, Benjamin S. Redmond and Sheila M. Mccue (collectively, "plaintiffs") bring this claim under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., the New York State Human Rights Law, N.Y.C. Admin. Code §§ 8-101, et seq., the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1, et seq., the Pennsylvania Human Relations Act, and the Connecticut Human Rights and Opportunities Law against defendant, The New York Times ("The Times" or "defendant"), alleging that on the basis of their age they were terminated from their positions in a reduction-in-force caused by the reorganization of the Circulation Department at The Times. Defendant now moves for summary judgment.

In reviewing (1) the details of the elaborate procedures whereby employees were evaluated during this reorganization and those who were to be terminated were chosen, and (2) plaintiffs' objections to those procedures and decisions, I note the Court's summary of certain applicable law in Coleman v. Prudential Relocation, 975 F. Supp. 234, 239 (N.D.N.Y. 1997):

  The laws prohibiting discrimination in employment
  were "not intended to transform the courts into
  personnel managers." The Second Circuit has reminded
  district courts that they do not have a "roving
  commission to review

  business judgments," and that they "must refrain from
  intruding into an employer's policy apparatus or
  second-guessing a business's decision-making
  process."

Id. at 239-40 (citations omitted). Plaintiffs' objections to the decisions made by The Times amount to a difference of opinion as to (1) the procedure by which the decisions to terminate employees should have been made and (2) which employees should have been terminated.

Absent a legally cognizable civil rights violation, the running of the affairs of a business entity is for management, not for disappointed employees or their counsel. A simple disagreement over what constitutes good management is not a fair fight; management will always win. Moreover, it is not available to this Court to substitute its ideas of how to run a business for those of the managers duly vested with that responsibility, except where the basis for a management decision is shown to be an unlawful one. Because plaintiffs have not proffered any evidence from which a jury could find such an unlawful basis, defendant's motion is granted.*fn1

BACKGROUND

In October 1987, The Times began to experience a financial slide caused by decreasing advertising revenue. (Def. 56.1 Statement ¶ 4).*fn2 The recession of the early 1990's had a negative impact on the revenues, earnings and profitability of The Times. (Id. ¶ 5). In June 1994, The Times offered a voluntary buyout program for all employees in the Newspaper Division. (Id. ¶ 6). Following this buyout program, a new department was created called Customer Order Fulfillment ("COF"). (Id. ¶ 7). This new department resulted in the elimination of approximately 40 positions, the then-current holders of which were subsequently offered a transition package consisting of job counseling, career counseling, financial counseling, outplacement services and an extension of tuition assistance program eligibility. (Id. ¶¶ 8, 9).

In May 1995, the Circulation Department ("Circulation") had a total of 128 employees. (Id. ¶ 10). The Times determined that Circulation needed to be reorganized to decrease operating cost and staff. (Id. ¶¶ 11, 12). On May 19, 1995, William Pollak ("Pollak"), the Executive Vice President of Circulation, told Circulation employees that a decision had been made to reduce the staff. The reorganization would result in the elimination of 25 to 30 positions. (Id. ¶¶ 13, 14). Pollak asked Donna Miele ("Miele"), Vice President of Human Resources, to create a process to reduce the Circulation staff by means of a voluntary buyout (the "Buyout") similar to that which had been created for the COF. (Lauri Aff., Ex. D, p. 40). First, each employee in Circulation would be given an opportunity to fill out a qualification survey and meet with a human resources representative who would explain the survey that the employee had to fill out. Second, each employee's direct manager would be asked a series of questions and complete a performance review on each employee. Third, the vice-presidents would make the final termination decisions. (Id. at pp. 40-41). This process was developed to help select Circulation employees for lay-off in the event that 25 to 30 employees did not accept the Buyout. (Def. 56.1 Statement ¶¶ 16, 17). The Circulation employees were informed that the reduction of 25 to 30 employees would be accomplished by (1) eliminating ten to fifteen Home Delivery Managers who were supervising two to three employees each; (2) eliminating ten to fifteen Circulation Sales Representatives ("CSRs")*fn3; and (3) reducing support staff by between five and ten positions. (Id. ¶ 22).

On June 20, 1995, each employee was sent a self-evaluation form regarding his/her abilities and performance at The Times. Employees were offered a training session to assist them in filling out the survey and were also given an opportunity to discuss the survey one-on-one with a Human Resources representative. (Id. ¶¶ 24-27). The survey graded each employee on a scale of 1 to 5: "5" for work which exceeded requirements; "3" for work which met requirements; and "1" for work which did not meet requirements. (Id. ¶ 30). Each employee's supervisor was required to meet with a Human Resources representative who in turn completed a Supervisory Reference Form from each of the supervisor's reports. (Lauri Aff., Ex. D, pp. 41-42). This combined information was reviewed at a two-day meeting held on July 24 and 25, 1995 by the four vice-presidents in Circulation — Harry Woldt, Jr. ("Woldt"), Charles Shelton ("Shelton"), Lauretta Prestera ("Prestera") and Pollak (collectively, the "Decisionmakers"), who were 47, 38, 47, and 49 years old, respectively. (Def. 56.1 Statement ¶¶ 33, 34).

The number of employees in Circulation was reduced in four ways: (1) several management and support positions were eliminated outright; (2) the number of Home Delivery Managers was reduced as territories were both consolidated and closed; (3) the nature of the CSR position was changed from selling to small distributors to establishing partnerships with regional papers for third party deliveries and selling to national chains; and (4) the night CSR position was eliminated completely. (Id. ¶ 36). Following the July 24-25 meeting, 29 employees in Circulation were identified for termination. (Id. ¶ 37). These employees were permitted to accept the Buyout up to August 11, 1995. (Id. ¶ 38). Plaintiffs were all employed by The Times in Circulation and were terminated from their positions in that Department in August 1995. (Compl. ¶¶ 11-18).

Lawrence Helfand ("Helfand") began his employment with The Times in 1960 and was 53 years old when he was terminated. (Pl. Material Facts ¶¶ 1-2). Throughout his course of employment, Helfand received promotions to Assistant Director of the Home Delivery Department, Northeast Manager for Circulation, Transportation Manager, and finally to Home Delivery Manager for Southern New Jersey. (Id. § 57 4-7). Shelton, his direct supervisor, stated he "[didn't] recall anything outstanding or negative" about Mr. Helfand's performance. (Id. ¶ 9; Schneider Aff., Ex. C, pp. 23). Lauretta Prestera had personal knowledge of Helfand's performance, and the decision to terminate him was based on the evaluations presented at the meeting in July 1995. (Pl. Material Facts ¶ 10). Helfand received a rating of "3" on the Supervisory Reference Form. (Def. 56.1 Statement ¶ 58). Due to the reorganization plan, the Northern and Southern New Jersey territories were combined into one territory, and Susan Mills was chosen to manage this combined territory. Mills was 39 years old and received a "5" on her Supervisory Reference Form. (Id. ¶¶ 58-62).

Thomas Mathews ("Mathews") began working at The Times in 1983 as a newspaper carrier supervisor. (Pl. Material Facts ¶ 12). Upon termination he was 52 years old and held the position of National Northeast Home Delivery Group Manager, responsible for home delivery throughout the country except for the New York City Metropolitan area. (Id. ¶¶ 11, 17). Mathews alleges that he was never told anything was wrong with his performance and he never received negative criticism. (Id. ¶ 21). Prestera indirectly supervised Mathews when he served as the Northeast National Group Manager, and John Daly directly supervised him. (Id. ¶ 25). In the months prior to the downsizing in July 1995, at a meeting to change management, O'Sullivan alleges that when Mathews began to speak, Eric Rosen, a 39-year old National Sales Manager stated, "I guess he forgot to take his senility pills today." (Schneider Aff., Ex. J, pp. 108-109). Mathews, however, did not attribute any age-based comments to the Decisionmakers. (Lauri Aff., Ex. K, pp. 221-222). Prior to the July meeting, Mathews was asked to write evaluations of the seven employees who reported to him in addition to other individuals. Mathews alleges he was never told for what purpose these evaluations would be used. (Pl. Material Facts ¶¶ 31-33). Mathews received a "3" on his Supervisory Reference Form. (Def. 56.1 Statement ¶ 67). His position was reorganized, and the responsibilities were expanded and changed. (Id. ¶ 68). The Decisionmakers did not feel that Mathews possessed the necessary skills for this new position. They filled this position with David Chanler, 41, who had received a rating of "4-4.5" on the Supervisory Reference Form. (Id. ¶¶ 70, 71).

Howard Seiter ("Seiter") began his employment in 1976 and was 53 years old when he was fired. (Pl. Material Facts ¶¶ 34-35). Seiter was promoted several times, and in January 1995, Shelton offered him the position of Training Manager. He never directly reported to Pollak, but Pollak recalled that Seiter was "well recommended to become the training manager." (Id. ¶¶ 43-44). He was not directly supervised by Prestera. (Id. ¶ 46). Seiter received a "3" on the Supervisory Reference Form and was laid off because his position as Sales Training Manager was eliminated in the reorganization. (Def. 56.1 Statement ¶¶ 96, 97).

Maureen Moccia ("Moccia") was 56 years old when she was fired after 22 years with The Times. (Pl. Material Facts ¶¶ 47-48). Moccia received a rating of "4.75-5" but was fired because her position as Support Manager for Special Projects in Circulation was eliminated. (Def. 56.1 Statement ¶¶ 85, 86). Moccia alleges that two of her younger counterparts, Laura Pepper-Doyle and Nayda Mariette, who performed similar functions, were not terminated even though their ratings were lower. (Pl. Material Facts ¶¶ 54-57). Moccia was never denied a promotion and received all salary increases available to her. (Id. ¶ 58). Following her termination, Moccia applied for a position in the COF Department and was hired as of August 23, 1995. She received the same salary and benefits in this position as in her previous position in Circulation. (Def. 56.1 Statement ¶ 92).

James O'Sullivan had worked at The Times for 33 years when he was terminated in 1995 at age 50. (Pl. Material Facts ¶¶ 64-65). He worked in the accounting department, the advertising department and, as of 1980, in Circulation. (Id. ¶¶ 66-67). After several transfers he became the regional manager in Philadelphia. He was never demoted and never failed to receive a salary increase. (Id. ¶¶ 72-73). He never directly reported to Pollak. (Id. ¶ 75). O'Sullivan alleges that his supervisor, Ray Pearce, told him "that the person he intended to hire as a district manager was too old." (Id. ¶ 79). O'Sullivan did eventually hire a man in his 50's. Pearce allegedly responded "that he did not want an older individual hired as a manager because he would not have enough energy to do the job." (Id. ¶ 80). Pearce was 35 in 1995. (Id. ¶ 81). O'Sullivan also alleges that at a town meeting in late 1994 or early 1995, Arthur Sulzberger, Jr., the Publisher of The New York Times, stated that "if you are a manager over 40 in The New York Times your career was pretty much over." (Schneider Aff., Ex. J, p. 150). When asked about this incident, Mathews, also present at the town meeting, stated that he recalled Sulzberger's saying that "white males were an endangered species." (Lauri Aff., Ex. K, p. 222). Mathews could not recall if there was a reference to age or not. (Id.) O'Sullivan received a rating of "3" on the Supervisory Reference Form. (Def. 56.1 Statement ¶ 40). As part of reorganization, the Philadelphia office was closed and, thus, O'Sullivan's position was eliminated. The Philadelphia territory was taken over by Paul Brown, 44, who received a rating of "4". (Id. ¶¶ 42-45).

Kenneth Mooney was 49 years old and had been working at The Times for 31 years when he lost his job in 1995. (Pl. Material Facts ¶¶ 84-85). He held many positions and, in 1993, Prestera asked him to become the Production Distribution Manager, requiring him to oversee individuals who would be monitoring the newspaper deliveries from the plants to the wholesalers. (Id. ¶ 94). Although Mooney received a rating of "4-5" on the Supervisory Reference Form, with the elimination of the night CSR positions, there were no employees requiring supervision. (Def. 56.1 Statement ¶¶ 75, 76). After his termination Mooney asked The Times for a list of available jobs. He alleges that he was given a list of openings for writers and reporters and was not advised of the openings in the COF Department. Mooney became aware of a position in COF when he saw the posting at The Times. Mooney applied for this position and was hired. (Pl. Material Facts ¶¶ 97-99). He received the same salary and benefits in the COF Department as in his previous position in Circulation. (Def. 56.1 Statement ¶ 82). As a manager, Mooney was asked to provide oral evaluations for certain individuals whom he did and did not manage and alleges he was not informed that his evaluations would be used in the lay-off process. (Pl. Material Facts ¶ 101). One of the individuals that Mooney evaluated was plaintiff Enrique Edwards. Mooney denies that he gave Edwards a rating of "2" which appears on Edwards' evaluation form. (Schneider Aff., Ex. K, pp. 221-223). Mooney did not want to evaluate Edwards because he claims he "had no firsthand knowledge on what [he] should say." (Id. p. 222). Mooney does admit that he previously knew Edwards for six months. (Id.).

Sheila McCue ("McCue") began working at The Times in 1980 in the classified advertising department and was terminated at age 45. (Id. ¶¶ 103-104). McCue claims she never received any complaints or criticism from either Shelton or Pollak. (Id. ¶ 108). McCue reported directly to Kevin Cappallo and alleges he never complained about her performance. (Id. ¶ 112). Cappallo, however, gave her a rating of "2" on her Supervisory Reference Form and, as compared to other CSRs, viewed her as not sufficiently independent and lacking the ability to manage a large staff or larger territory necessary in the CSR position. (Def. 56.1 Statement ¶¶ 110, 113, 114).

Enrique Edwards was 57 years old when he was terminated after 27 years at The Times. He claims that he was consistently told that he was doing a good job by the managers including Shelton. (Pl. Material Facts ¶ 129). He received a rating of "2" from plaintiff Mooney, although Mooney denies that he gave this rating. (Schneider Aff., Ex. K, p. 221). The night CSR department was eliminated, thus Edwards had no employees to supervise, and his position was terminated. (Def. 56.1 Statement ¶¶ 50, 52).

Benjamin Redmond began working at The Times in 1989 and was 50 years old when he was terminated. (Pl. Material Facts ¶ 131). Redmond never directly reported to Pollak, Shelton or Prestera and during his course of employment received two publisher's awards. (Id. ¶¶ 140, 143). He received a "2" on the Supervisory Reference Form and was one of the first Home Delivery Managers whose position was eliminated. (Def. 56.1 Statement ¶¶ 102, 104). Redmond's territory was taken over by Mary Ann Licata, 46, who had received a rating of "4" on her Supervisory Reference Form.

Each of the plaintiffs testified that no age-based comments were ever made by the Decisionmakers. (Def. 56.1 Statement ΒΆΒΆ 46, 54, 64, 72, 83, 94, 98, 106, 115). Circulation had 128 employees before firing 29 employees in August 1995. Before reorganization, 72% of the employees in Circulation were over 40 years old. After reorganization, 68% of the employees were over 40 years old. Furthermore, prior to August 1995, 77.5% of ...


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